Supreme Court Chief Justice John Roberts has built his reputation on being considerate and adhering to Roberts’ “rules of order” whenever he’s working in his official capacity.
But The National Law Journal’s Tony Mauro reports that facade seems to be slipping.
Roberts took a Justice Department lawyer to task Tuesday during a health insurance case for being, in the chief justice’s opinion, less than candid during oral arguments.
From Mauro’s report about the arguments:
Roberts zeroed in on footnote 9 in the government’s brief, which described a position taken in previous ERISA cases by Bush Administration Secretary of labour Elaine Chao and then stated that “upon further reflection … the Secretary is now of [a different] view.”
Roberts said angrily, “That is not the reason. It wasn’t further reflection. We have a new secretary under a new administration, right?” He was referring to Obama administration labour secretary Hilda Solis.
Joseph Palmore, the assistant to the solicitor general arguing in the case, agreed, and Roberts continued, “It would be more candid for your office to tell us when there is a change in position that it’s not based on further reflection of the secretary. It’s not that the secretary is ‘now of the view;’ there has been a change. We are seeing a lot of that lately.”
When Palmore interjected that the law had changed in the last decade, Roberts replied, “Then tell us the law has changed. Don’t say the secretary is now of the view. It’s not the same person. You cite the prior secretary by name, and then you say, the secretary is now of the view. I found that a little disingenuous.”
The Atlantic, for one, is not impressed with the new Roberts.
In a piece called “The Nerve of John Roberts,” writer Andrew Cohen takes the chief justice to task for reprimanding the government for being “a little disingenuous” when he’s done the same thing himself.
“This from a judge who disappeared the scope of the Commerce Clause in the Affordable Care Act case,” Cohen wrote. “This from a judge who gutted decades of First Amendment precedent in the Citizens United case after reaching out, unilaterally, to expand the scope of that campaign finance case.”
While Roberts’ snappish remarks drew the ire of the press, he probably can’t compete with his colleague Antonin Scalia, who’s known for his zingers and brash statements.
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